Martinez Municipal Code Ch. 8.06 Restricting the Advertising and Promotion of Tobacco Products to Minors

The purpose of this Chapter is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors as well as the unlawful purchase or possession of tobacco products by minors.

(Ord. 1280 C.S. § 2, 2001)

A.

"Advertising display sign"

means a sign, billboard, signboard, poster, placard, free-standing sign, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. It includes a sign which is temporary or permanent, placed on or affixed to the ground, sidewalk, a pole or post, fence, or a building, or displayed in the window or door of a commercial establishment.

B.

"City manager"

means the City Manager or his/her designee.

C.

"Mobile billboard"

means an advertising display sign which is placed on or affixed to a vehicle if the vehicle is parked within a public right-of-way or on private property and is used primarily to advertise a product.

D.

"Offering for sale"

means that tobacco products are actually sold and or displayed in the retail establishment.

E.

"Promotion"

means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand that calls the public's attention to the product brand.

F.

"Publicly visible location"

means an outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or a location inside a commercial establishment that is in or adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare. To be considered "publicly visible," an inside location must be within one foot of a window or doorway.

G.

"Tobacco product"

means a substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, and smokeless tobacco.

(Ord. 1280 C.S. § 2, 2001)

This Chapter shall be administered by the City Manager. The City Manager may develop guidelines to ensure implementation of this Chapter.

(Ord. 1280 C.S. § 2, 2001)

Restriction. No person shall place or maintain, or cause or allow to be placed or maintained, any advertising or promotion of tobacco products on any advertising display sign in a publicly visible location within 1,600 feet of the perimeter of: a public or private elementary, middle or secondary school; or a public playground or playground area in a public park (e.g. a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).

(Ord. 1280 C.S. § 2, 2001)

Section 8.06.050 does not apply to advertising or promotion for tobacco products which are:

A. Located inside a commercial establishment, unless the advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;

B. On vehicles, other than mobile billboards;

C. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco, so long as the sign does not promote any brand of tobacco product; or

D. On tobacco product packaging.

(Ord. 1280 C.S. § 2, 2001)

A. No manufacturer, distributor, or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold, any items (other than tobacco products) or service to a minor, which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or patterns of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.

B. No person in the business of selling or otherwise distributing tobacco products for commercial purposes shall, in the course of such business, distribute, or direct, authorize or permit any agent or employee to distribute any of the following on a public street or sidewalk, in a public park or playground, or on any other public ground or in a public building: (1) a cigarette or other tobacco product; or (2) a coupon, certificate, or other written material which may be redeemed for tobacco products without charge.

(Ord. 1280 C.S. § 2, 2001)

It is unlawful for a person to sell, permit to be sold, offer for sale, or display for sale any packaged tobacco product by means of a self-service display, rack, counter top or shelf that allows a self-service customer access to a packaged tobacco product. All packaged tobacco products shall be offered for sale exclusively by means of seller assistance. Packaged tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring seller assistance for the customer to obtain access to the packaged tobacco products.

(Ord. 1280 C.S. § 2, 2001)

A. City manager review. A private citizen or a City officer or employee may submit a written complaint to the City Manager concerning any advertising or promotion prohibited by this article. The City Manager will review and, if determined to be appropriate, act upon the complaint in a timely manner. The City Manager may serve written notice requiring correction of any violations of this article upon the person responsible for the business or for the advertising display sign or promotion or self-service display prohibited by this article. Any notice issued shall specify a date by which the violation must be corrected. The notice shall be served by (1) personal service or by (2) certified and first class mail.

B. Correction. The person responsible shall correct the violation within the time specified in the notice.

C. Each display and each day a separate offense. Each separate display of tobacco advertising or promotion prohibited by this article is considered a separate violation. Each day a violation continues is considered a separate violation.

D. Each business location a separate entity. For purposes of determining liability, each individual franchise or business entity is deemed a separate entity.

(Ord. 1280 C.S. § 2, 2001)

A. Intent as to additional legal restrictions and remedies. Nothing in this Chapter is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this Chapter. The remedies set forth in this article are not exclusive. If any action prohibited by this Chapter is also unlawful under any other law, the penalties and remedies under other laws may be pursued in addition to those provided in this Chapter.

B. Disclaimers. By prohibiting the advertising or promotion of tobacco products in outdoor or publicly visible locations, prohibiting the distribution of tobacco-related promotional items and self-service displays of tobacco products, the City is only promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Ord. 1280 C.S. § 2, 2001)

A. License required. It is unlawful for a person or retailer who, within the last 12 months, has been determined to be in violation of a provision of this Chapter, or applicable state or federal law governing the sale and distribution of tobacco to sell or offer for sale any tobacco products within the city without first obtaining and maintaining a tobacco retailer's license from the city.

It is unlawful for a person or retailer who is required to have a tobacco retailer's license to sell or offer for sale any tobacco products if the license has been suspended under Section 8.05.170.

A tobacco retailer's license shall be obtained from the City Manager.

B. Term of license—Obligation to maintain. A license is valid from three years, and a person or retailer subject to this license requirement must maintain the license during the three-year period. If there are no further violations of any laws regulating the sale or distribution of tobacco in that three-year period, a tobacco retailer's license will no longer be required.

(Ord. 1280 C.S. § 2, 2001)

An application for a tobacco retailer's license shall be submitted in the name of the person or retailer, who, following a finding of violation as specified in Section 8.06.090, proposes to conduct retail tobacco sales on the business premises. The application shall be signed by the person or retailer or its authorized agent. The application shall be submitted on a form provided by the City and shall contain the following information:

A. The names, address, and telephone number of the applicant;

B. The business name, address, and telephone number where tobacco is sold; and

C. Such other information as the City Manager determines is reasonably necessary for implementation of this Chapter.

(Ord. 1280 C.S. § 2, 2001)

Upon receipt of a completed application for a tobacco retailer's license, including payment of the license fees, the City Manager will issue a license. A license may not be issues if there are continuing, uncorrected violations.

(Ord. 1280 C.S. § 2, 2001)

The fee for a tobacco retailer's license shall reflect the actual cost of processing the license, including inspection of the tobacco retailer's business premises and implementation of the licensing program, as established by resolution of the City Council. The fee shall not exceed $500 annually.

(Ord. 1280 C.S. § 2, 2001)

The license must be prominently displayed at the location where tobacco retail sales are conducted.

(Ord. 1280 C.S. § 2, 2001)

The tobacco retailer's license is nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration dates as the previous one.

(Ord. 1280 C.S. § 2, 2001)

A. Suspension of license. In order to discourage violations of law, a tobacco retailer's license may be suspended if the City Manager finds that the licensee of his or her employee has violated any law regulating the sale or distribution of tobacco. See Section 8.05.100 A above). The City Manager may suspend the license only after giving the licensee notice and a reasonable opportunity to be heard on the matter. The City Manager shall put his or her findings in writing.

B. Time period of suspension.

1. The first time that the City Manager finds a violation occurred, the license to sell tobacco products may be suspended for up to 60 days.

2. After the second time that the City Manager finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to 120 days.

3. After the third and each subsequent time that the City Manager finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to one year.

C. Appeal of suspension. A decision of the City Manager to suspend a tobacco retailer's license may be appealed to the City Council.

(Ord. 1280 C.S. § 2, 2001)

A. Imposition of Fine—Amounts. If the City Manager finds a person or retailer is selling or offering tobacco products for sale without a valid tobacco retailer's license (or has a suspended license), that person or retailer may be subject to an administrative fine, as permitted under Government Code Section 53069.4. A fine may be imposed only after the City Manager has given notice and an opportunity to be heard.

The fine amount is:

1. Up to a maximum $100.00 for a first violation;

2. Up to a maximum $200.00 for a second violation within 1 year;

3. Up to a maximum $500.00 for the third and subsequent violations within 1 year.

Each day that tobacco products are offered for sale without a license by a tobacco retailer required to have a license shall constitute a separate violation.

B. Fine procedures. Notice of the fine shall be served on the tobacco retailer or person who is the owner of the establishment by certified and first class mail. The notice shall contain an advisement of the right to request a hearing by the City Council contesting the imposition of the fine. The hearing must be requested within 10 days of the date of the notice of the fine.

C. Appeals. A fine may be appealed to the City Council. A person contesting the decision of the Council may seek court review under Government Code Section 53069.4(b).

D. Failure to pay fine. Any outstanding fines must be paid before the issuance of a tobacco retailer's license.

(Ord. 1280 C.S. § 2, 2001)